Whether the defence of illegality defeated the complaint of discrimination

Lord Wilson (with whom Lady Hale and Lord Kerr agreed) handed down judgment in the matter of Hounga (Appellant) v Allen and another (Respondent), [2014] UKSC 47, on appeal from the Court of Appeal of England on 30th July 2014.

The case concerned the Appellant, a young Nigerian national, who had agreed to come to the United Kingdom to work for the Respondent under a false identity in January 2007. Despite being granted a visitor's visa for only six months, the Appellant continued to work for the Respondent for 18 months and overstayed on her visa.

Whilst working for the Respondent, the Appellant suffered serious physical abuse by the Respondent and was subjected to various threats to be imprisoned if she made a complaint to the authorities of the abuse suffered, as her presence in the UK was illegal.

In July 2008, the Respondent evicted the appellant and thereby dismissed her from the employment. The Appellant claimed that she was unlawfully dismissed on racial grounds, namely on grounds of nationality.

The Employment Tribunal upheld the Appellant's complaint and ordered the Respondent to pay compensation. The Respondent appealed against the order, which the Employment Tribunal dismissed.

However, the Court of Appeal upheld a further cross appeal and set aside the order. It held that the illegality of the contract of employment formed a material part of the Appellant's complaint and to uphold it would be to condone the illegality.

The Appellant appealed to the Supreme Court.

The main issue for the Supreme Court to determine was whether the Court of Appeal was correct to hold that the illegality defence defeated the complaint of discrimination. It was held that there is an insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination.

To allow the Appellant to recover for that tort would not amount to the court condoning what it otherwise condemned.

Therefore, the Appellant was successful in her appeal and was awarded compensation in the sum of £6,187.

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